Jenny Macklin (Jagajaga, Australian Labor Party, Shadow Minister for Families and Community Services) Share this | Link to this | Hansard source

I move:

That all words after “That” be omitted with a view to substituting the following words:“whilst not declining to give the bill a second reading, the House:

(1)

notes that the vast majority of the amendments contained in the bill are uncontroversial and supports the intent of the bill to streamline and improve elements of the Native Title Act and the native title application process;

(2)

calls on the government to:

(a)

withdraw proposals which would retrospectively overturn the rights of native title holders; and

(b)

hold consultations with native title holders about these matters;

(3)

believes that it is appropriate that—as Native Title concerns questions of indigenous laws and culture—corporations that include non-Indigenous members not be permitted to act as Prescribed Bodies Corporate whose primary purpose is the administration of native title rights;

(4)

believes that it is appropriate that the Federal Court be the only body that is entitled to appoint default Prescribed Bodies Corporate, and that the Act should reflect this; and

(5)

acknowledges the need to provide statutory authority for the charging of fees by Prescribed Bodies Corporate, but calls upon the government to develop a more appropriate fee regime in consultation with stakeholders”.

The Native Title Amendment (Technical Amendments) Bill 2007 makes a raft of changes to the Native Title Act 1993. I will touch very briefly on the provisions of the bill before I proceed to outline Labor’s general support for the bill. We do have some areas where we have some concerns, and I will go through those.

Schedule 1 will introduce the majority of the changes to this bill. These include amendments to the process for future Indigenous land use agreements and the making and resolving of native title claims, changes to the obligations of the registrar and a range of other changes. Schedule 2 simplifies a range of procedures relating to representative Aboriginal and Torres Strait Islander bodies, ensuring that legal obligations on those bodies are not duplicated, improving processes for reviewing decisions and clarifying the process for transferring documents from a superseded body to a replacement body. Schedule 3 introduces a range of amendments to the operation of prescribed bodies corporate. It will close a loophole relating to the replacement of these prescribed bodies corporate with other PBCs and prescribe a regime for the charging of fees by those prescribed bodies corporate. Schedule 4 is composed entirely of minor technical amendments, and I will not go into those.

As I said earlier, Labor support the vast majority of the changes in this bill and we will be voting for them as they are technical amendments designed to streamline and improve the operation of the Native Title Act rather than radically alter it. However, there are changes which we do not agree with or which, it would probably be more accurate to say, we believe could be clarified and improved in the best interests of all of those who will have to operate under the new scheme. I will start with a concern that was identified in the submissions to the Senate committee—that is, the new fee system that is proposed in schedule 3 of this bill. Labor can certainly understand the argument in favour of having a fee regime. The bodies are performing a statutory function, and as such it is certainly reasonable to expect at least some level of statutory prescription of fees.

According to the bill, the scheme would work in this way: a registered native title body corporate would be entitled to charge a fee for the costs it incurs for certain negotiations—including negotiations for a ‘right to negotiate’ agreement, or its equivalent under a state or territory scheme, or negotiations for an Indigenous land use agreement. A body corporate will be entitled to charge fees for costs it incurs in these negotiations. There are a limited number of persons whom it cannot charge a fee. They are set out in subsection 60AB(4). There are also certain types of negotiations for which a body corporate would not be entitled to charge a fee, and the ability to prescribe by regulation other circumstances for which a fee cannot be charged.

Concerns were raised in submissions to the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs on this bill that the proposed fee scheme represented a restriction rather than a facilitation of the ability for bodies corporate to charge fees. However, the Department of Families, Community Services and Indigenous Affairs has indicated otherwise. Evidence given by their representatives at the Senate inquiry persuasively argued that statutory bodies are, by law, required to either have explicit or implied authority to charge fees. Our problems with section 60AC revolve around the fact that it provides that a person who has been charged a fee may go to the registrar to obtain an opinion about whether or not the fee is payable. The registrar then gives an opinion which may agree or disagree that the fee is payable. If the registrar decides that the fee is not payable, that opinion is binding on the body corporate.

This section also provides that the regulations may set out the scheme in greater depth. In any event, it is our view that there are still quite a few unanswered questions about the fee system that, at this stage, preclude our ability to support it. These questions include: is there a right of merits review for a native title body that believes the registrar has made an incorrect decision; will the regulations set fee scales; what procedures will the registrar have in place to assess the matters that are brought before it; what assurances are there that it will make consistent decisions; will it be a practice of the registrar to give an opinion which includes what they think to be an appropriate fee; if so, will this eventually evolve into a situation where the registrar effectively acts as a de facto agency which sets fees? Other questions of this nature present themselves and they need to be answered before the scheme can be supported. I say again that we understand why such a scheme is necessary—but those interests have to be weighed against the competing interests of registered native title bodies corporate to sustain themselves and to be viable into the long term.

At the moment, the fee scheme does not seem to address these issues. It seems to be too vague and arbitrary and potentially shifts far too much power onto the registrar, leaving the registered native title bodies corporate without certainty. Labor will move amendments to this section in the Senate in order to give such bodies corporate more flexibility in setting fees—as long as such fees are reasonable. However, we will not be moving to strike either section from the bill. Section 60AB is necessary to allow the statutory authority to charge fees, but it is incumbent on the government to develop a workable system and to bring that before the parliament. It would be helpful if the government were to withdraw this item and devise a proper and more comprehensive process for the review of fees that sets out the rights of each participant and how they might exercise those rights. As I have previously said, we understand the need and the arguments for some level of regulation of fees, but there needs to be greater scope for a reasonable level of fees to be charged.

A second area of contention in the bill relates to the provisions in the act which deal with cases in which applicants are found not to be properly authorised. As members of the House may know, certain types of native title claims and applications must be made by a person who has been properly authorised. The problem under the current regime is that there is no clear indication of what would happen if it were to become clear during the proceedings that the applicant was not properly authorised. The proposed scheme, which we broadly support, would fix and clarify this situation. It would allow for the court to make an order that evidence must be produced by an applicant to show that they were authorised to make the application. If the court were to determine that the person was not authorised to make the application, they could make a range of orders. The court would also be entitled to continue to hear and determine the applications if it believed that such a course of action were in the interests of justice. Labor supports these provisions, and I note from submissions to the Senate inquiry that the provisions are supported and welcomed by the stakeholders. However, one suggestion that was made in submissions which we believe has merit and should be adopted is that a person who is making an application to the court for an order to produce evidence be required to show cause as to why it should be made. This would help to make sure that such applications are not open to abuse.

The third area of difficulty with this bill relates to the potential for non-Indigenous persons to be members of bodies corporate which oversee native title rights for native title holders. Native title is an area which is distinctly indigenous and is based on Indigenous customs and laws. It is appropriate that this section be clarified to make sure that only corporations with solely Indigenous members are entitled to become prescribed bodies corporate.

Labor will also move amendments in the Senate to alter the right of review which has been introduced in these amendments. The bill before us introduces a provision which allows for registration applications that have been rejected by the registrar to be reviewed by the registrar. Labor support the introduction of these registration provisions, but we believe that they could be improved. Specifically, we follow the submissions of the Native Title Tribunal, which argued that it would be more appropriate for a member of their body to review the rejected applications rather than the registrar who, after all, would have been responsible for the original rejection. Evidence given to the Senate committee by the North Queensland Land Council supported this proposal. In the Senate we will move amendments in line with these proposals. They are sensible and will improve the bill by giving failed applicants much greater confidence in the process. The review will not be carried out by the same body that rejected it, but by a fresh pair of eyes.

I will turn now to the proposed amendments that deal with and validate alternative state regimes. As the submission by the Human Rights and Equal Opportunities Commission pointed out, there are concerns that this section would act to retrospectively remove the rights of native title holders. As such, we believe that these items that relate to the validation of the alternative state regimes should be delayed pending consultation with native title holders.

Finally, I turn to the issue of the new provisions for default prescribed bodies corporate. The new provisions essentially allow for the appointment of prescribed bodies corporate in circumstances where no functioning body corporate has been nominated by the native title holders. This will mean that the functions that a prescribed body corporate normally undertakes will continue to operate in circumstances where, for a variety of reasons, they currently do not. However, there are some issues with this scheme. The main concern is that the regulations will allow not only the prescription of the types of bodies corporate that may be determined as a default PBC under this scheme but also the exact bodies corporate. The Human Rights and Equal Opportunities Commission has described this, in evidence to the Senate committee inquiry, as a radical shift from the current policy on two grounds: firstly, because it moves the power away from the courts and, through regulations, to the government and, secondly, because the legislation as it stands will provide scope for the government, in future, to actually prescribe the exact body corporate that will be the PBC.

I note that the response of the department was to indicate that they do not believe that these powers will ever be exercised by a body other than a court, so I foreshadow now that Labor intends to move amendments to the bill to make sure that this intention is in fact captured in the legislation. Labor will move amendments to restrict these provisions in the bill and make sure that the Federal Court remains the body that deals with the determination of prescribed bodies corporate.

Despite the concerns I have outlined, I indicate again that Labor support this bill. We believe that it can be only a positive development towards cutting down the time it takes for native title matters to be resolved. I think that is in everybody’s interests. I foreshadow that Labor will move amendments in the Senate in line with those I have outlined in my remarks. We do so because we believe it will improve the operation of the bill rather than radically alter it. When the amendments are moved in the Senate, I hope the government will recognise that they have been moved with that intention.

Phillip Barresi (Deakin, Liberal Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration, Integration and Citizenship) Share this | Link to this | Hansard source

I second the amendment.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Native Title Amendment (Technical Amendments) Bill 2007 and to lend my support to the second reading amendment moved by the member for Jagajaga. In her speech, the member outlined the concerns the Labor Party had with sections of the amendment bill before the House. I do not propose to repeat those concerns; however, I think it is worth while going over the history of the Native Title Act as there is a lot of concern with some of these amendments and the tranche of bills that have been pushed through by this government. In the second reading speech, it is asserted that this is being done without undermining the existing balance of rights and interests under the Native Title Act. In respect of what the member for Jagajaga said, there are some question marks over that for some of the stakeholders.

The Labor Party does not oppose amendments that improve the act. This act should be about protecting native title and the rights of prospective native title holders. The problem has been that with every piece of legislation—certainly with the 1998 bill that has now successfully amended the act—come bucketfuls of extinguishment. What also came through in subsequent pieces of legislation—it appears in this bill as well—was retrospective validation of acts that in effect might have offended the existing Native Title Act. Validation was a big issue with the original act. I must say I am getting a bit sick and tired of the federal parliament having to validate acts of the state governments, which on a number of occasions have taken the risk. In effect, instead of using provisions of the Native Title Act, they then come to us, cap in hand, and say: ‘Look, there is a question mark over this. Can you help fix it up for us?’ Some suggestions in the current bill were put forward by the Aboriginal and Torres Strait Islander Social Justice Commission in relation to the South Australian provisions—that what is happening is a validation of acts of the state government of South Australia, to do with section 43 and some tenements in relation to that.

I must say that I do not have a lot of sympathy for state governments. When I was practising as a lawyer, I was always cautious in my advice. If there was doubt, I did not encourage clients to act in a way that could be detrimental to them in the future but provided caution. There is no doubt that in the early stages of the Native Title Act there was a bit of uncertainty because the law was still developing. The original Native Title Act—that is, the Keating government Native Title Act—was 127 pages long; that is all it was. That act contained a preamble, which is still there—it has not been amended by this government. The preamble says:

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate.

It goes on to say:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned ...

Unfortunately, in many instances there is no negotiation and there are no consent determinations. It is a knock down, drag down fight all the way to the Federal Court or to the High Court. It is generally the Commonwealth government or the state governments that spend many millions of dollars fighting Indigenous people all the way through, telling us that they need to clarify this and clarify that. It is being done now to an act of parliament—the amended Native Title Act. This is a government that does not believe in red tape. The Native Title Amendment Act was passed in 1998 with bucketfuls of extinguishment. It has 443 pages as opposed to the original 127 pages. That is why there is a bit of cynicism in the Indigenous community when dealing with governments. I think it is fair to say that this applies to governments of any political persuasion.

That is why we need to be careful about this amendment bill. The Labor Party has basically said that by and large it supports much of what is in this bill. I think that is fair enough. It is agreed: the bill does need refining. It needs improving, but we need to be careful not to cut back on the existing rights of Indigenous Australians—which is what seems to be happening here with some of the validation procedures. We have a minister who said in the last little while that he was not going to increase the money to native title representative bodies to help them in pursuing determinations. All that is doing is slowing down determinations of native title. We have a situation where the mining companies are saying the native title representative bodies are not being properly funded. That is another basis for Indigenous people to believe that they are not being fairly treated in this process. Indeed, we have a special responsibility as a parliament to protect Indigenous people. We were given that responsibility through the 1967 referendum, and we will be celebrating the 40th anniversary of that referendum in a couple of weeks time.

A report on this bill was tabled in the Senate recently. As I see it, the Senate committee made six substantive recommendations to the government. There were also some minority recommendations from members of the Labor Party, and among them were recommendations relating to items 62 and 63 of schedule 1, which purportedly seek to clarify the scope of alternative state regimes under section 43 of the Native Title Act. There were also some additional comments by Senator Bartlett and by the Greens.

I want to take up the second reading dissertation that the government made where it said ‘without undermining the existing balance of rights and interests under the Native Title Act’, because that is what we should be about. In 1998, many amendments were picked up by the government that were originally Labor amendments. We were well advised in 1998 by people who were expert in the area. Good discussions were taking place behind the scenes whilst there was the fundamental disagreement in relation to the act. There were a couple of hundred amendments—maybe the member for Lingiari can correct me—that were picked up by the government that had originally been Labor amendments. I suspect there would have been more, but the government did the deal with Senator Harradine to sell out Indigenous interests, and the amendment bill went through with opposition from the Labor Party.

There were many more amendments on the table from the Labor Party that I think would have improved and streamlined the operation of the act. I am not saying that the act does not require amendment. I applaud the government for refining it and I understand that some consultation has taken place with Indigenous communities. I know that you will never reach unanimous agreement in this area with everyone, but that need to consult with people on the ground is important—but not with a view to basically winding back existing rights under the act.

A submission to the Senate committee came from the Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of HREOC. His recommendation 1 stated:

That Item 56 not be enacted unless it is amended so that a notice under s.29 may not give notice of more than one proposed future act unless:

• each of the proposed future acts would affect land subject to claim by the one native title claim group, or to a determination of native title in favour of the one native title holding group; or
• each of the proposed future acts would affect land within the one representative body area.

There was then recommendation 2. On pages 5 and 6 of the submission—which I will not read out, because I will not take much longer—there is his recommendation in relation to South Australia:

That Items 62, 63, 138 and 139 not be enacted.To the extent that South Australia has granted invalid titles or done other acts which are invalid as a result of the invalidity of the Commonwealth Minister’s determinations under s.43, and it is considered necessary to retrospectively validate them:

• Amendments should follow extensive consultations with affected Indigenous peoples; and
• the validating provisions ought not go any further than validating the invalid tenements; and
• just compensation for any loss resulting from doing the acts under the invalid laws should be made payable to the native title holders ...

In effect, what we are saying is that you should not reward people who have engaged in unlawful acts, acts that are not valid within the framework of the Native Title Act. I believe that retrospective validation has occurred too many times and should not continue to occur. So I support those suggestions.

There were other recommendations that I will not go into. But the commissioner needs to be taken into account and given due consideration. He cannot just be dismissed. That is the problem here: when Indigenous people get up to protest when their rights are being trampled, or have been retrospectively trampled, very few people listen. I tell you what: if it were Rio Tinto or BHP they would be going feral. We would all be listening then. I can remember when the High Court in effect upheld 4-3 the property rights of a mining company. It was a lease over land to do with Bulla. The member for Lingiari remembers it very well. Everyone respected the High Court’s decision, which was 4-3, the same as it was in the Wik case—but, because the victors in Wik were not a mining company, all hell broke loose.

I think we need to just take a raincheck in relation to some of these amendments. I do not think it will take much to satisfy the people concerned. I implore the government to listen to them in that regard. It is time we moved forward without Indigenous people always being done over and short-changed of their rights. They are doing it tough enough as it is without us giving dispensation all the time to people who do not follow proper processes.

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Link to this | Hansard source

I thank the member for Banks for his contribution to the debate on the Native Title Amendment (Technical Amendments) Bill 2007. He is one of the few people in this parliament who has any real appreciation of the delicacies, intricacies and detail of the Native Title Act. He has that because he was engaged, as I was, in the discussions in this parliament over the original native title legislation. He was here in the parliament when the amendments were made in 1998 and he has had an ongoing interest in this issue—and an ongoing commitment, as he was previously the shadow minister responsible for Indigenous affairs. He is well known for his advocacy of Indigenous interests as well as his advocacy of the protection of their rights as Australian citizens.

I note that the member for Banks mentioned the Wik case of the High Court. I remember that famous case and other cases in which the claimants—in this case the Indigenous people—had victories, and the furore that accompanied those victories. In particular, on this occasion, if I recall correctly, the then Deputy Prime Minister of Australia was attacking the High Court in this decision—very publicly, without any measure of feeling for or understanding of the rights that had just been won by Indigenous Australians through that court case. I think it is a major blight on the record of that person, who left this place with much acclaim as being a good man—well, a good man who did bad things. On this occasion he did a bad thing by attacking the High Court for its decision to protect the native title interests of these people. I know that the member for Banks made comment at the time about the observations that were being made about the High Court and its temerity in making this decision or upholding the rights of Indigenous Australians. I remember well, in discussions in this place and elsewhere, the views that were expressed by the member for Banks and others and their disgust at the way in which Indigenous Australians’ rights were being undermined in a very overt way and a very divisive way by the then government—led, appallingly and shamefully, by the then Deputy Prime Minister.

I am pleased to support this piece of legislation. But most particularly I would like the government to support the amendments that have been moved by the opposition. As we know, the purpose of the legislation is to make a range of what are termed technical changes—but in fact are not all just technical—to the Native Title Act, which will have the stated effect of streamlining it and improving its operation.

There are four schedules. Schedule 1 will introduce the majority of the changes, which include amendments to the processing of future Indigenous land use agreements, ILUAs. I observed the contribution by the member for Banks. He recalled the amendments in 1998. At that stage I was not in the parliament. I was actually employed as a policy advisor to the National Indigenous Working Group on Native Title, who were here negotiating with the government and the opposition about those changes to the Native Title Act. One of the propositions which were put forward, advocated by both the Labor Party and Indigenous interests, was the development of Indigenous land use agreements, which appeared subsequently as amendments to the Native Title Act. That was a very positive change, and one which we supported. The second thing that schedule 1 will do, referring to the making and resolving of native title claims, is to change the obligations of the registrar, and there will be a range of other changes.

Schedule 2 simplifies a range of procedures relating to representative Aboriginal and Torres Strait Islander bodies—rep bodies—ensuring that legal obligations on those bodies are not duplicated, improving processes for reviewing decisions and clarifying the process of transferring documents from a superseded body to a replacement body. Schedule 3 introduces a range of amendments to the operation of prescribed body corporates, or PBCs. It will close a loophole relating to the replacement of PBCs with other PBCs and prescribe a regime for the charging of fees by PBCs. Schedule 4, I am advised, is entirely composed of minor technical amendments.

This package of amendments is pursuant to the reforms to the native title system that the Attorney-General proposed in late 2005. It is worth noting, or reminding ourselves, of the six elements of the reform proposed. Firstly, there was an independent review of the native title claims resolution process. This was undertaken by Mr Graham Hiley and Dr Ken Levy. The report was handed down in March 2006. Secondly, there were technical amendments to the Native Title Act. Thirdly, there were consultations and measures to encourage the effective function of PBCs. Fourthly, there was the reform of the native title non-claimants (respondents) financial assistance program to encourage agreement making rather than litigation. Fifthly, there were measures to improve the effectiveness of native title rep bodies. Sixthly, there was the increased dialogue and consultation with state and territory governments to encourage more transparent practices in the resolution of native title.

These reforms that were proposed were long overdue. It speaks volumes of the government and its administration of this area of the law that the native title system seems, at least on one level, to be in such disarray, because unfortunately the implementation of these reforms has not occurred with any expedition. The Native Title Amendment Act 2006 was passed, after amendment, by this parliament on 28 March 2007. These changes drew an amount of criticism from involved parties, particularly the rep bodies, and it is clear that changes are needed to assist the performance of these organisations. One of the changes needed is to ensure that they are funded appropriately and that they are funded sufficiently to carry out their many tasks—and very onerous tasks they are, in many cases.

We now know, of course, that the progress of native title claims through the courts has been both slow and costly. According to the National Native Title Tribunal, as at 23 September 2006 there were 547 native claims pending, including 12 compensation claims. Only 91 claims have been finalised. Of these, 62 said native title existed and 29 said it did not. It is a bit of a concern—in fact, it is a real worry—that it takes so long for the processing of these claims.

For the original claimants of the Murray Islands it was an epic struggle but after the sacrifices of Eddie Mabo and others—and after he had died—the landmark decision that bears his name was handed down by the courts and that resulted, eventually, in the passage of the native title legislation. I believe it is inexcusable that there are similar delays, but there are. Unfortunately, I do not believe those people who administer this legislation understand, or are aware of, the circumstances and conditions in which many of the claimants live. Nor do they appreciate or understand the sacrifice and hardship that is suffered by many, and the difficulties they confront in putting a claim forward. It is sad but true that—as was the case with Eddie Mabo—after a claim has been lodged, it is often the case that, unless there is a negotiated outcome, by the time the claimant process has passed through the courts, the claimants are dead.

That is a really sad indictment. People’s rights have been recognised by the courts through the High Court’s decision on native title and subsequent decisions, such as Wik. The parliament has legislated to recognise those rights and put in place a procedure by which people can make claim over country. Unfortunately and sadly often their claims come to nothing before they have passed from this earth. We have to do something to try and improve the processes so that this is no longer the case and to minimise the frustration and delays that currently occur.

As the member for Banks observed, this legislation has been the subject of a Senate committee inquiry. Its report was handed down yesterday. There are a number of issues highlighted by a minority report to that committee report, which I would like to address—in particular, the changes proposed in relation to alternative state regimes; the new authorisation court processes; and a number of changes to PBCs, contained in schedule 3 of the bill.

Section 43 of the Native Title Act allows a state or territory to establish a right to negotiate procedures which operate to exclude the provisions in the Native Title Act, where the Commonwealth minister is satisfied that alternative procedures meet statutory criteria set out in section 43(2). This has been done in number of South Australian determinations in relation to mining and opal mining. According to the explanatory memorandum, the changes, specifically items 61 to 64, ‘put beyond doubt the validity of the current South Australian section 43 determinations’.

This change was attacked by HREOC in its submission. It noted that such changes are effectively giving retrospective validation to acts done in contravention of the act. This is hardly a technical amendment, as observed, again by the member for Banks, and the government’s endeavour to pass it off as such is indicative of their attitude—unfortunate, in my view—to native title generally. In this regard, we need to delay passing these provisions until there has been proper consultation with native title holders about the validation of any relevant determination acts and negotiate just compensation where appropriate. That is the least we can do.

There are also problems with the provisions relating to default PBCs. The changes in this legislation apparently arise as a result of the recommendation in the PBC report of October 2006:

The Office of Indigenous Policy Coordination should develop a comprehensive proposal for the establishment of ‘default’ bodies corporate to perform PBC functions in circumstances where there is no functioning PBC nominated by the native title holders.

There is need for a mechanism for determining default PBCs. That is clear. However, under these changes, the Federal Court would not necessarily be the body making the choice as to the appropriate body to be the default PBC. Rather, this choice could be made by regulations or by another person or body.

This is entirely problematic, as it diverges from the intention of the department that the court could continue to determine PBCs. I note that Mr Greg Roche, Branch Manager of the Land Branch, Department of Families, Community Services and Indigenous Affairs, acknowledged this point in his oral submission to the committee hearing on Wednesday, 2 May 2007, in which he said:

Practically speaking ... we cannot currently foresee circumstances in which a body other than a court might determine the body. But we thought it useful to put a little bit of scope in this regulation-making power, in case that should prove necessary.

That should not happen.

Finally, it is worth observing that HREOC described these amendments to the PBC regulation-making powers as ‘a radical shift in the current policy embedded in the act’—and indeed that is so. The court in this instance may not be the determining body. It could well be someone else. To this end, Labor is recommending that the regulation-making powers in items 1, 2, 5 and 6 of schedule 3 be restricted to ensure that the Federal Court continues to determine prescribed bodies corporate.

Another area of contention is the proposed item 7 of schedule 3. This purports to implement a fee-for-negotiation scheme which would allow PBCs to charge a fee for expenses they incur in certain types of negotiations and for other functions. Realistically, the government should be providing proper funding for PBC bodies. This should not be a substitution for proper government funding. That is very clear. I know a number of PBCs around Australia. I know how strapped for cash they have been. I know how difficult they have found it to put in place processes by which they can negotiate over rights which they currently hold. It is entirely appropriate that the government should ensure that they are properly and adequately funded. This was noted in the government’s own PBC report, Structures and processes of prescribed bodies corporate, released in October 2006, in which it said:

... it is clear that the level of resources currently available will not meet all of the requirements imposed on PBCs under the current regime. While some of these difficulties can be alleviated through possible reforms to streamline the existing statutory governance model ... we consider that there will need to be additional measures taken by Governments to ensure that PBCs may function effectively.

Having noted this, I will return to the fee regime proposed. The National Native Title Council described this proposed fee regime as discriminatory. It is very difficult to see how we could support it. We would like to see the fee scheme amended to give far more flexibility to these PBCs.

Non-Indigenous members of PBCs are also an issue. Item 5 of schedule 3 raises the prospect of non-Indigenous people being members of PBCs. This seems, unfortunately, to be something of a legislative trend now. Under the recently passed Corporations (Aboriginal and Torres Strait Islander) Act 2006, non-Indigenous people can now be included as members of Aboriginal corporations. This has a number of complications, one of which is of course that it has the potential—not that it might always do this, but it has the real potential—to undermine Aboriginal representation on these bodies. The Native Title Council expressed its strong criticism of this, stating that it would be ‘entirely inappropriate’ for non-Indigenous people to be members of PBCs, given that native title is based on Aboriginal traditional law and customs. The Native Title Act should be amended to reflect this, to prevent non-Indigenous people from being members of prescribed bodies corporate.

Another issue is the question of authorisation processes. There are concerns with item 88 of schedule 1. Under this item, the Federal Court would be able to order the production of evidence of authorisation of applicants. Where there is a defect in authorisation, the court can decide, after balancing the need for due prosecution of the application, in the interests of justice, whether it will, firstly, hear and determine the application despite defects in authorisation and, secondly, make any such order as it sees fit.

The National Native Title Council identified a concern that this might be exploited strategically in a court proceeding. An application for the production of evidence could be made by any party to the proceedings, or on the application of a member of the claim or compensation group, without showing cause as to why an order for production of evidence should be made. It seems pretty clear that this provision will be open to abuse. It is suggested therefore that the proposed provision include that the applicant for production of evidence of authorisation should be required to show cause to the court as to why such an order should be made.

Labor supports the substantial body of this bill. It makes a lot of necessary technical changes; however, it falls short of what is really required. I urge the government to consider and support the amendments moved by the Labor Party here and those moved in the Senate.

Gary Nairn (Eden-Monaro, Liberal Party, Special Minister of State) Share this | Link to this | Hansard source

On behalf of the Attorney-General, I would like to thank the members for their contributions to the debate on the Native Title Amendment (Technical Amendments) Bill 2007. I also thank the Senate Standing Committee on Legal and Constitutional Affairs for its detailed consideration of the bill. I note that the committee has made several recommendations in its report, which was tabled last night. The government will be carefully considering these recommendations, and any government amendments resulting from the committee’s recommendations will be made in the Senate.

Since the Attorney-General first announced a package of reforms to the native title system in September 2005, a substantial number of measures have been developed and are now being implemented. These include the Native Title Amendment Act 2007, which commenced in April this year and implements changes to the institutional framework of the native title system, along with changes to native title representation bodies and prescribed bodies corporate. This second piece of legislation will complement those changes by making a large number of minor and technical amendments to the Native Title Act to improve the workability of the act as a whole. The measures in the bill cover a broad spectrum of processes in the act, including Indigenous land use agreements, future acts, processes for making and resolving native title claims and the obligations of the registrar in relation to the registration of claims. As I said, the government will deal with the recommendations from the Senate committee as part of the Senate deliberations on this bill.

I would like to make a few comments on those and also on the amendment moved by the member for Jagajaga. The bill allows prescribed body corporates, PBCs, to charge for negotiating agreements and Indigenous land use agreements, ILUAs. There will be no schedule of fees and no prescription of things that can be charged for. The bill therefore allows maximum flexibility for parties to negotiate fees between themselves. The only limit on fees is that they must not be such as to amount to taxation. For a fee to avoid being a tax, it must be imposed in respect of a service to be delivered to the persons required to pay the fee. In practical terms, this is similar to requiring that a fee be reasonable for services provided.

The bill amends provisions dealing with replacement of PBCs, including where this occurs in accordance with the native title holder’s wishes. The new provisions are similar in scope to existing provisions, which do not specify that replacement of PBCs must be effected via a Federal Court determination. However, as a practical matter, it is likely that the regulations would give the Federal Court this role. The bill does not alter the existing situation whereby only the Federal Court can determine a PBC in connection with the making of a native title determination or where the native title holders fail to nominate a PBC in connection with the making of a native title determination. There will be further consultation on relevant regulations.

The Australian government has foreshadowed changes to the PBC regulations to allow non-native-title holders to be members of a PBC. This will enable PBCs to better represent the interests of wider Indigenous communities if this is what the native title holders want. It will also allow PBCs to include non-Indigenous people—for example, family members—in PBC decision making if this is what the native title holders want. It will be up to the native title holders to decide these matters. If the native title holders only want native title holders or other Indigenous people to be members, they will be perfectly free to impose these requirements. The Australian government has also clearly indicated that, regardless of a PBC’s membership, only native title holders would have a right to be involved in making native title decisions. There will be further consultation on relevant regulations.

The amendments in this bill are designed to put beyond doubt the validity of the current South Australian section 43 determinations in relation to mining and opal mining, which had the effect of replacing the Native Title Act right to negotiate provisions with a right to negotiate regime under South Australian legislation. I understand the South Australian regimes have been operating effectively for over 11 years.

The Senate Standing Committee on Legal and Constitutional Affairs has noted its support for the enactment of these provisions given that the amendments simply seek to place on a firm footing the understanding that parties have been operating under to date. It is in the interests of all parties that there is certainty about the way the provisions operate, and this is what the amendments in this bill will achieve.

In conclusion, it is important to note that the technical amendments have been the subject of extensive consultation and that the majority of measures in this bill reflect issues raised by stakeholders themselves following a consultation process spanning more than a year. As the measures in this bill reflect the practical knowledge of those who are involved in the native title system on a day-to-day basis, the Attorney-General expects that the amendments before the parliament will enable workable improvements to native title processes. I commend the bill to the House.

Patrick Secker (Barker, Liberal Party) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Jagajaga has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The immediate question is that the words proposed to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.